VOL. 6 NO. 6 (June , 1996) pp. 105-108.
FREEING THE FIRST AMENDMENT: CRITICAL PERSPECTIVES ON FREEDOM OF EXPRESSION by David S. Allen and Robert Jensen (Editors). New York University Press, 1995. 288pp. Cloth $50.00. Paper $18.50. Reviewed by Donald W. Crowley (University of Idaho).
This volume of 14 rather disparate essays suggests that the First Amendment needs to be freed. From what? While the answer still won't be clear after reading the book, the essays are loosely united by the view that our understanding of the First Amendment needs to be freed from a prevailing liberal orthodoxy.
The notion that there is a liberal orthodoxy that dominates academia, law schools, and the judicial systems runs more or less through entire book. This view is most directly stated by Frederick Schauer in the second essay where he claims that within academia the ideology that more speech is better prevails and that this is true despite the fact that the U.S. already allows for more free speech than any other country (p.13). Schauer further argues that despite the devotion of academia to freedom of speech very little attention is paid to justifying this position. Thus, in academic domains there seems to be "little free thought about free thought, little free inquiry about free inquiry, and little free speech about free speech" (p.13).
If Schauer is right then this volume is certainly needed since it subjects the First Amendment doctrine to a dizzying array of criticisms. However given the multitude of critiques easily found in law journals and other scholarly works, it is far from clear that there is a liberal orthodoxy in academia or anywhere else that non-reflectively supports the need for greater free speech. The essays in this volume certainly add to our appreciation of the tensions, problems and shortcomings in First Amendment theory. Still, if one reads these essays hoping to find a coherent theory of what the First Amendment should mean in modern America one is likely to be disappointed.
Virtually all of the essays share the notion that there is something wrong with our current understanding of free speech. However, several essays advocate vast expansions of the protection offered by the First Amendment by applying the free speech rights to the workplace. Others call for a shrinking of current protections emphasizing the alleged harm caused by some types of speech (hate speech, pornography) and the manner in which such speech actually serves to silence some voices. A third concern raised by many of the essays is the need to reconceptualize the First Amendment in terms of providing greater protection for speech that furthers public dialog and democratic participation.
Two essays, one by Thomas Street and another by Victoria Smith Holden argue that in some fundamental sense the First Amendment's protection for free speech misses a major part of what concerns working men and women due to its failure to reach the workplace. Streeter argues that formalistic legal approaches to free speech with its emphasis on speech-action distinctions and content-neutral regulations has been indifferent or at least insensitive to context and power relations and thus offers "symbolic protection to soap boxes while in practice protecting media corporations much more effectively that dissidents" (p.46). Addressing such concerns Victoria Smith Holden argues for an expansion of free speech doctrine to workplaces while Cass Sunstein advocates a new deal for speech which would allow greater government regulation of media giants in the interests of furthering democratic debate. Holden's view would seem to require significant revisions in our understanding of constitutional law by altering the state action doctrine but Holden argues more creatively for a new application of the Thirteenth Amendment. "Expansion of the Thirteenth Amendment to cover basic labor rights, such as free speech...could come through an incorporation process such as has occurred with the Fourteenth Amendment." In an era where decrying judicial activism (at least liberal judicial activism) is dominant, it is hard to imagine under what circumstances such a suggestion would be taken seriously.
More plausible is the appeal of Cass Sunstein to rethink our understanding of free speech as it applies to government licensing and regulation of broadcasting. Sunstein suggests that "government regulation of speech might, in some circumstances, promote free speech, and should not be treated as abridgment at all" (p.55). Sunstein argues that broadcasters are "given property rights in their licenses by government, and the grant of such rights is unambiguously state action" (p.59). The ability of "enormous institutions having huge resources" to obtain such rights allows them to dominate communication and thus effectively silence other voices (p.58).
Sunstein's argument suggests a type of positive right of access, or at least a positive obligation of government to regulate in the broader interests of promoting a democratic polity. However, since Sunstein's view of regulation would not allow for viewpoint-discrimination, his approach would adhere to significant parts of current doctrine. David Allen's essay poses a more serious threat to current understanding. His argument is that the First Amendment should be aimed at creating an active public but an informed one. Sharing Sunstein's and Streeter's concern with elite institutions dominating citizen participation , Allen claims that prevailing liberal theory is more concerned with "educating citizens so that they might be able to indirectly participate in democracy" (p.99) instead of allowing the space in which citizens can become active participants in the life of the community. Allen argues that by framing the First Amendment debate in terms of a speech-conduct dichotomy the Supreme Court has aided in the creating of an inactive citizenry. Allen's societal critique has merit, but it isn't obvious that the Supreme Court's speech-action dichotomy has played much of a role in creating an inactive citizenry. Like Holden, I would think more would be gained by expanding free speech claims to areas of social life heretofore unprotected.
A vastly different line of criticism emerges from at least three of the other essays. These essays, in differing degrees, argue that prevailing definitions of harm need to be reconsidered. In separate essays Owen Fiss and Robin Barnes attack the Court's view of hate speech that emerges from the 1992 R.A.V. V. CITY OF ST. PAUL decisions. The Court ruled against the St. Paul hate speech ordinance on the grounds that it tended to favor one side of the debate by prohibiting some types of "fighting words" while allowing others. Fiss suggests that the Court should allow such laws if they serve to prohibit speech that interferes with the speech rights of others and "discourages them from participating in the deliberative activities of society" (p.85). This approach would require an analysis of the context to determine whether the speech being regulated actually had a "silencing effect" (p.87).
Robin Barnes articulates the conflict between equality norms and liberty norms more starkly in stating that "Racist hate speech activity in public fora not only promotes harassment and intimidation, but jeopardizes safety, feeds the collective frustrations of the community, and thwarts prospects for meaningful initiatives toward open and productive dialogue by lowering the quality of public discourse" (p.260). In this light, Barnes would adhere to the Court's (1969) decision in BRANDENBURG V. OHIO but reach opposite results in R.A.V. and the Skokie case.
Pushing the potential silencing effects of harmful speech further, Robert Jensen and Elvia Arriola argue that we should reject the notion hat speech deserves greater protection than other forms of behavior (p. 210). Their version of feminism suggests that free speech doctrine must be concerned about more than the absence of governmental restraints, but also about "oppressed people being free from the communication of others that harms them, both directly and indirectly..." (p.213). "This involves restraints on both public and private power to help prevent harm and the positive use of public power to help people find a voice: (p.213). Their essay doesn't provide an analysis of harm nor provide a sense for how government might help give people a voice.
Curiously, the essay which comes closest to defending traditional approaches to the First Amendment comes the perspective of another oppressed group, lesbians and gay men. Paul Siegel provides a note of caution to those anxious to endorse "First Amendment revisionism" by claiming that gay groups have been most likely to prevail when they can offer "a clear and plausible argument based on traditionally accepted First Amendment principles" (p.225). Siegel even suggests restraint in shrinking the state action doctrine, lest the price paid for allowing gay marchers in the St. Patrick's Day parade is religious fundamentalist participation in gay rights events (p.236).
As a whole these essays don't add up to a coherent case against traditional approaches to analyzing the First Amendment. Cass Sunstein's desire to reconsider the role of government regulation in the broadcasting industry could be accomplished, with the help of Congress, with little damage to traditional First Amendment doctrine. The objection to such regulations is less likely to come from the liberal orthodoxy decried by Schauer than by defenders of property rights. More problematic is the tension between the goal of equality and the goal of free expression which is most sharply drawn by the conflict over hate speech codes. Even here Justice Scalia's understanding of the "fighting words doctrine" leaves room for restriction of hate speech. Perhaps Fiss is right and the fighting words doctrine needs to be reevaluated in light of whether the speech in question "has a silencing effect" Such an approach would not be consistent with absolutist interpretations of the Amendment but the convoluted combinations of balancing and assorted versions of clear and present danger that have typically dominated Supreme Court decision making could well make room for such considerations.
Whether such a move would be beneficial is a more difficult question. The marketplace of ideas metaphor is clearly an imperfect one, but it can serve to remind us that regulation of speech may not have the results we desire. The final essay in this collection suggests that we can't make up our mind whether words are powerful or powerless. This, I believe, misstates the issue. Word are clearly potentially powerful, but do we make them less powerful by seeking to punish those who use words that harm us? Ultimately we render them less powerful by finding the voice to counter them.
BRANDENBURG V. OHIO, 395 U.S. 444 (1969).
NATIONAL SOCIALIST PARTY OF AMERICA V. SKOKIE, 432 U.S. 43 (1977).
R.A.V. V. CITY OF ST. PAUL, 505 U.S. ____ (slip opinion) 1992.